70 P. 455 | Cal. | 1902
Lead Opinion
The appellant filed a petition in the superior court for the removal of the respondent from the office of administrator of the estate of the above-named decedent and for the revocation of his letters of administration, upon the ground that he had mismanaged the estate and neglected his duty as administrator thereof, setting forth in her petition, as the facts upon which she made her charges, that he had allowed one Ulty McCabe to take from the property of the estate thirteen head of cattle, and had not sought to regain them; that he had neglected to collect the amount of a note of George F. Raker, secured by mortgage, belonging to the estate, and had allowed the same to become barred by the statute of limitations; that he had allowed certain fraudulent claims against the estate, and had procured an order for their payment without any notice to the heirs, and had paid the same; that he had conspired with Ulty McCabe and James McCabe for the purpose of depriving the other heirs of the deceased of their inheritance, and to that end had procured the said Ulty McCabe to institute an action against all the other heirs upon a pretended contract between him and the deceased; that no such contract was ever made, and that the claim of said Ulty McCabe is without merit, and that the administrator well knew said fact; that the administrator, though requested thereto, did not intervene on behalf of the defendants in said action; that he has aided and assisted said Ulty McCabe in said action, and has advised and co-operated with him in the prosecution thereof and the enforcement of his claim. The administrator filed an answer denying the several allegations and charges of the petitioner. After hearing the evidence offered upon the issues thus presented, the court held that the several charges of the petitioner were unfounded and untrue, and denied her application. From this order she has taken the present appeal.
When the matter came on for hearing the petitioner asked for an order suspending the powers of the administrator pending the investigation, and the denial of this motion is assigned as error. Section 1436 of the Code of Civil Procedure directs that an order must be made, suspending the *476 powers of an administrator whenever the judge "has reason to believe, from his own knowledge or from credible information," that the facts named in the statute as reasons for such order exist. This provision implies that the court is at liberty to examine and consider the "information" for the purpose of determining whether it is "credible" or affords any reason to believe in the truth of the facts alleged. If, as in the present case, each of those facts is distinctly denied by the administrator, the court is not required to make an order of suspension until the truth of the informer's allegations shall have been established.
The court by which an executor or administrator is appointed has a very large discretion in determining whether, upon the facts presented to it, the officer shall either be suspended or removed, and unless it shall appear that such discretion has been abused, and especially where the evidence is such that different minds might reach different conclusions thereon, the action of the trial court will not be reviewed on appeal. In the present case, upon the issues involving the conduct of the administrator in respect to the thirteen head of cattle and the Raker note and mortgage, the evidence is such as at least to create a doubt whether they were ever the property of the decedent; and as it clearly appeared that the administrator had good grounds for believing that they did not belong to the estate, it cannot be held that the court was required to revoke his letters. The court might properly hold that the determination of this question should be made by a tribunal which could obtain jurisdiction of those claiming the property. The petitioner offered no evidence whatever in support of her charges that the administrator had improperly allowed any claims against the estate.
The main ground urged by the appellant in support of her petition is, that in the suit brought by Ulty McCabe the administrator did not seek to intervene or become a party thereto, and that when he ascertained that the suit was being prosecuted by the same attorneys as were employed by him in the administration of the estate he made no objection thereto, but continued to retain them as his attorneys for the estate.
The complaint in the action of Ulty McCabe is set forth in *477
the bill of exceptions, and under its allegations he seeks a judgment establishing that a contract was made between him and Matthew Healy in his lifetime, by which, as against the defendants in the action, he will be entitled, after the estate has been fully administered, to a distribution of all the property then remaining in the hands of the administrator. It is in effect a suit to determine a controversy between different heirs as to their respective rights of inheritance, and in such a controversy it is well settled that the administrator has no interest, but is a mere officer of the court, holding the estate as a stakeholder, to be delivered to those whom the court shall decide to be entitled thereto. (Roach v. Coffey,
The petitioner introduced no evidence tending to show that the administrator had aided or taken any part in the institution or prosecution of the action, or in any respect manifested any interest in the plaintiff's claim or in the suit. On the other hand, the testimony of the administrator was positive and direct to the contrary. The allegations of the petitioner in this respect, as well as those of a conspiracy between the administrator and the McCabes, or any agreement between them to deprive the other heirs of their inheritance, were wholly unsupported, and the only ground presented in support of the appeal upon this charge against the administrator is, that the attorneys of the administrator are also the attorneys of Ulty McCabe in his action. The mere fact, however, that they are acting as his attorneys in that action does not of itself incapacitate the administrator or indicate that he is in any respect unfaithful to his trust. *478
In a controversy between the heirs of a decedent upon a matter in which the administrator has no interest, and which does not affect his relation to the estate in his hands, the attorney for the administrator violates no obligation to his client by acting as attorney for one of the heirs as against the others. (SeeJones v. Lamont,
Upon the establishment of the fact that the deceased made the contract as alleged, the heirs are regarded as trustees of the estate, and will be compelled to convey the property in accordance with the terms of the contract. Their relation to the estate is thereupon the same in effect as if they had personally contracted to make such conveyance.
The provisions of section 1597 et seq. of the Code of Civil Procedure have no application to the facts herein, inasmuch as the contract referred to in those sections must be "in writing," and by virtue of such contract the property affected by it is taken to be from the administrator, and not subjected to administration or distribution, whereas in the present case it is only after the administration has been closed that the contract can be made operative. Neither is the action a proceeding to determine heirship under section 1664 of the Code of Civil Procedure, since it proceeds upon *479 the assumption that the heirship has been determined, and seeks merely a determination of their respective rights.
The order is affirmed.
Garoutte, J., Temple, J., and McFarland, J., concurred.
Concurrence Opinion
I concur in the judgment of affirmance. In doing so I deem it unnecessary to decide the question whether Hosselkus, as administrator, was a necessary party to the action of Ulty McCabe against the heirs — a question vital to that case, but in my opinion not material here. He was at all events not made a party to that action, and no judgment therein rendered can affect his right to keep in his possession the whole of the Healy estate for every purpose of the administration. When he fully administers the estate, — collects the assets, pays the debts, settles his accounts, and turns over the residue for distribution, — he has performed his entire duty. He is not bound to defend, and has no interest in defending, an action which will in no wise impede him in the full discharge of his trust.
Dissenting Opinion
We dissent, and think that the order should be reversed.